On April 28, the U.S. Supreme Court ruled 6-3 that the First Amendment does
not require states to permit two parties to jointly nominate the same candidate.
Timmons v Twin Cities Area New Party, 95-1608 (the case in lower
courts had been Twin Cities Area New Party v McKenna). The decision
was written by Chief Justice William Rehnquist. The dissenters were Justices
John Paul Stevens, David Souter and Ruth Bader Ginsburg. The case was from
Minnesota; the 8th circuit had ruled that the First Amendment's freedom of
association clause requires states to let two political parties jointly
co-nominate a candidate if they wish to.

More significant than the court's specific holding, was a wholly gratuitous
paragraph, not needed for the decision, saying "States also have a strong
interest in the stability of their political systems. This interest does not
permit a State to completely insulate the two party system from minor parties'
or independent candidates' competition and influence, not is it a paternalistic
license for States to protect political parties from the consequences of their
own internal disagreements. That said, the States' interest permits them to
enact reasonable election regulations that may, in practice, favor the
traditional two party system, and that temper the destabilizing effects of party
splintering and excessive factionalism. The Constitution permits the Minnesota
Legislature to decide that political stability is best served through a healthy
two party system. And while an interest in securing the perceived benefits of a
stable two party system will not justify unreasonably exclusionary restrictions,
States need not remove all of the many hurdles third parties face in the
American political arena today (citations omitted)."

Never before had the Court used the term "two party system" to justify
discrimination against minor parties.

Minnesota had not defended its law by discussing the "two party system". No
evidence was presented to the lower court about the "two party system", and the
U.S. District Court decision (which upheld the ban on fusion) did not mention
the term.

No political scientist has ever testified in any ballot access lawsuit (or
any lawsuit involving the rights of minor political parties) that the health of
the two party system is enhanced by laws which discriminate against minor
parties, their candidates or their members.

The only reference Rehnquist could find to support his conclusion, were three
older U.S. Supreme Court decisions which spoke favorably of the "two party
system": Davis v Bandemer, Rutan v Republican Party of
Illinois, and Branti v Finkel. But none of these cases had
anything to do with minor parties. One was a reapportionment case, and the other
two concerned patronage. In each case, the context was that the state should
strive to keep each of the two major parties competitive with each other. When
political scientists have worried about the health of the two-party system, they
have desired that the two major parties each be strong enough to win control of
the government at some point. If one of the major parties is permanently much
stronger than the other, there is little check against tyranny.

U.S. history shows that minor parties help keep the two party system healthy.
The Republican Party seemed to have a "lock" on the presidency after the Civil
War; it won eleven presidential elections 1860-1908, whereas it lost only two.
It was precisely the "factionalism" of 1912 (ex-Republican Theodore Roosevelt
bolting that party and forming the Progressive Party) which gave the Democrats a
chance to win the White House.

The 1980's also saw much discussion of a Republican "lock" on the electoral
college, which was broken in 1992 partly by Ross Perot's independent candidacy.

Rehnquist's point was rebutted by the U.S. Supreme Court 1968 decision
Williams v Rhodes, which struck down Ohio's ballot access laws and
said that those laws weren't protecting the two party system; they were
protecting two particular political parties from any outside competition.
Williams v Rhodes was written by Justice Hugo Black, known for his
staunch defense of the First Amendment, and one of the few deceased Supreme
Court Justices who has ever been honored with his own postage stamp.

Rehnquist was once friendlier to minor parties. In 1976, he was one of only
two justices who wrote that the Constitution barred the federal government from
using tax money to subsidize major parties, and no others. In his dissent in
Buckley v Valeo, he wrote, "Congress, of course, does have an
interest in not funding hopeless candidacies with large sums of public
money...But Congress in this legislation has done a good deal more than that. It
has enshrined the Republican and Democratic Parties in a permanently preferred
position, and has established requirements for funding minor party and
independent candidacies to which the two major parties are not subject... I find
it impossible to subscribe to the Court's reasoning that because no third party
has posed a credible threat to the two major parties in Presidential elections
since 1860, Congress may by law attempt to assure that this pattern will endure
forever." Rehnquist would have invalidated the law which gave general election
funding only to parties which had polled at least 5% of the vote in the previous
election.

Major Parties Also Injured

Ballot Access News does not believe that Minnesota's ban on
fusion is intrinsically discriminatory against any political party, or against
minor parties in general (obviously, many supporters of fusion would disagree).
The ban on voluntary fusion damages the First Amendment rights of all
political parties, major and minor alike. The Republican Party national
committee recognized that its rights were at stake also, and had filed an
amicus brief in support of voluntary fusion. If the Democratic and
Republican Parties had filed this lawsuit against a state law which barred them
from jointly nominating a candidate, the outcome would probably have been
different, given the strong support for the First Amendment rights of political
parties that the Court proclaimed in the 1970's and 1980's.

Silver Lining?

One possible benefit from Rehnquist's "two party" paragraph may be that the
OSCE (Office on Security and Cooperation in Europe, in charge of the "Helsinki
Accords") can no longer avoid the conclusion that the United States is in
violation of the Copenhagen Meeting Document of 1990. Last year, when the OSCE
heard testimony that the United States does indeed discriminate against
political parties other than the Democratic and Republican Parties, this
testimony was not believed. This can be seen by the OSCE's recent report, which
summarized the November 1996 exchange thusly:

"A number of non-governmental organizations criticized new
political parties' lack of access to the ballot in several participating
States with long traditions of democracy (note: this is an oblique reference
to the United States); these barriers were characterized as contrary to the
OSCE Copenhagen commitments, and action by OSCE participating States and
institutions was called for. One delegation, the recipient of criticism with
regard to this issue, noted that such problems could be remedied through
existing appeal and regulatory structures and did not represent a breach of
the Copenhagen commitments."

(The Copenhagen Meeting Document pledges that signatory nations will "respect
the right of individuals and groups to establish, in full freedom, their own
political parties and provide such political parties with the necessary legal
guarantees to enable them to compete with each other on a basis of equal
treatment before the law and by the authorities").

Breyer a Disappointment

Justice Stephen Breyer, the most recently appointed Justice, had not been on
the Supreme Court when any previous case involving minor parties or independent
candidates had been heard. His vote for Rehnquist's opinion is a disappointment.
He is from Massachusetts, a state which has a independent member in its
legislature, and which elected an independent candidate to the U.S. House in
1972. Breyer ought to know that occasional successful independent candidates do
not harm the Massachusetts party system.

Term Limits Decision Ignored

Rehnquist's "two party" paragraph (and his entire decision) did not mention
the 1995 U.S. Supreme Court ruling U.S. Term Limits v Thornton,
which said that neither the states, nor Congress, can discriminate against a
class of candidates for Congress.

What Next?

In the future, all lawsuits challenging laws which discriminate against
political parties other than the Democratic and Republican Parties, should
include testimony from political scientists, to rebut Rehnquist's "two party"
paragraph.

Furthermore, copies of the briefs filed in the Timmons case
should be included in the pleadings, to make it clear that there was no evidence
in that case to support the idea that a healthy two-party system requires that
minor parties be injured. When the U.S. Supreme Court makes a large enough
mistake, there is no point in trying to rationalize that it didn't mean what it
said; attorneys should forthrightly say that the "two party system" paragraph in
Timmons is not supported by any evidence, was not needed to decide
the case, and is unsupported dicta.

Why did the Court choose this case, at this time, to say (for the first time
ever) that the "two party system" must be "protected" against minor and new
parties? This is a period in which the voters are more interested in supporting
alternative parties and candidates, than they have been in some time. The
"other" vote for president in both 1992 and 1996 exceeded 10%. At no other time
in U.S. history since the Civil War has the "other" vote for president exceeded
10%, two elections in a row. Minor party or independent candidates have been
elected to partisan federal, state, or local office during the 1990's, in
Alabama, Alaska, California, Colorado, Connecticut, the District of Columbia,
Hawaii, Maine, Massachusetts, Michigan, Missouri, New Hampshire, New York, North
Carolina, Pennsylvania, Rhode Island, South Carolina, Vermont, and Virginia. It
seems that the more the voters wish to vote for non-major party candidates, the
more the Supreme Court wants to prevent such behavior. The last Supreme Court
decision on this subject, Burdick v Takushi, issued in 1992, said
there is no constitutional right for a voter to vote for anyone he or she
wishes.

The Dissents

Justice Stevens wrote a dissent, arguing that fusion does not harm the two
party system. Justice Ginsburg co-signed it. Justice David Souter wrote his own
dissent, saying that he doesn't know whether fusion hurts the two party system
or not, but that the Court has no business even talking about the two party
system, since Minnesota's Attorney General didn't defend the state's ban on
fusion on the grounds that it protects the two party system. Souter mentioned
previous U.S. Supreme Court precedents which say that courts are supposed to let
the state which is defending one of its laws, say for itself what the state
interests are; the Courts aren't supposed to think up their own ideas on what
the state interest in the law is.

Anyone may obtain a free copy of the Timmons decision by
telephoning the U.S. Supreme Court at (202)-479-3211 (press #1) and asking for
the decision in case number 95-1608.

Contrary to the last issue
of B.A.N., the Arkansas legislature did pass a bill improving
the ballot access law for new parties. The bill is HB 1772, not HB 1771, and it
was signed into law on March 27.

The deadline for new parties is now May, not January. Since Arkansas holds
its primaries in May, the bill provides that new parties shall nominate by
convention, not by primary. Furthermore, elections officials must say within 30
days whether the petition has enough valid signatures. If it doesn't, the group
has an additional 15 days to collect more signatures.

Arkansas made these improvements because of the Reform Party's winning
lawsuit last year. The state has now dropped its appeal in that case. One
ambiguity remains, however; the U.S. District Court judge had ruled that the
number of signatures, 3% of the last vote cast, was too high, and the state did
not lower the number of signatures.

On April 11, New Mexico Governor Gary Johnson vetoed HB 865, which would have
banned all write-in votes. The bill was 49 pages long, and contained all the
election law revisions that the Secretary of State desired (the Secretary of
State did not ask for the write-in ban). The bill did not contain the write-in
ban until an amendment made only a week before the bill passed. Governor Johnson
vetoed the bill specifically because of the write-in ban. Many New Mexico
activists worked very hard to obtain the Governor's veto.

Even though the U.S. Supreme Court said in 1992 that states are not required
to permit write-in voting, none of the 45 states which permit write-ins has
abolished them yet.

On April 5, SB 293, which would have substantially eased ballot access in
Maryland, lost in the House by one vote. All bills needs 71 votes to pass the
House, but the bill received 70 "aye" votes and 62 "nay" votes. Nine members did
not vote. The effect of not voting as the same as voting "No".

Republicans were slightly more supportive of the bill than Democrats. 52% of
the Republican members voted for the bill, whereas 48% of the Democrats voted
for it.

This was the fifth year in a row that the Maryland legislature has defeated
the bill. However, each year it has come closer and closer to passing. The first
two years, it couldn't pass out of Committee in its house of origin. In 1995 it
passed a committee for the first time but lost in the Senate by one vote. In
1996 it passed the Senate but lost in the House by nine votes.

Last year, the Reform Party became the first minor party to enjoy "major
party status" in Washington state since the 1910's decade, by polling over 5% of
the vote for Ross Perot. This year, Representative Dave Schmidt (R-Bothell)
introduced HB 2241, which would have provided that, in addition to meeting the
vote test, a party must also have a county central committee in each county in
the state. Washington has 39 counties, some of which have fewer than 2,500
registered voters. HB 2241 had an urgency clause, so that if it had passed, it
would have taken effect immediately. However, the bill failed to advance.

On April 22, the Texas House Elections Committee passed HB 2712, which cuts
the number of signatures for new party petitions from 1% of the last
gubernatorial vote, to one-half of 1%. It also expands the petitioning period
from 75 days to six months, and changes the petition deadline from May to July.

On April 29, SB 1064 passed the legislature. The Governor is expected to sign
it. It makes a slight change in the formula determining how parties retain a
spot on the ballot. The immediate practical effect is to restore the Green Party
to the ballot. Unfortunately, the bill also imposes a requirement that new party
petitions carry the Social Security Number of each signer. This violates the
federal privacy act. Similar petition requirements were declared in violation of
the federal law, by courts in Kentucky and Delaware.

On April 23, the legislature sent HB 112 to the Governor. He has until May 7
to sign or veto it. Existing law defines "party" as an organization which polled
at least 3% for Governor. The bill says a group may also be recognized as a
"party" if it has a number of registered members equal to 3% of the last
gubernatorial vote (currently 6,403). The original bill required 10,000
registered members, but an amendment eased it.

Currently, only the Alaska Independence Party has 6,403 registrants, but most
observers feel that the Green Party (which placed second in last year's U.S.
Senate race, ahead of the Democrat), can also bring its registration up to that
number. If the Governor vetoes the bill, his veto will probably be overriden.

HB 2203 passed the House on April 10. The bill lowers the number of
registered members a party needs to retain its place on the ballot, from
approximately 950, to approximately 650. The bill doesn't change the 1% vote
test, which must also be met.

The West Virginia legislature adjourned on April 20, without acting on either
ballot access improvement bill, SB 131 and HB 2117. The bills would have
repealed the law which says that primary voters cannot sign a minor party or
independent candidate petition.

1. Alabama: HB 620, which passed out of Committee back on March 6,
still hasn't been brought up on the floor. It would lower the 20% vote test for
a party to retain its spot on the ballot, to 10%. SB 479, which would let
independent presidential candidates get on the ballot just by paying $500,
hasn't been heard in Committee.

2. Colorado: HB 1168, which vastly improves ballot access for minor
parties, still hasn't been voted on in the Senate.

3. Indiana: HB 1844 passed the legislature on April 29. It is several
hundred pages long and makes dozens of changes in various election laws,
including (1) specifying that the "sore loser" law does not apply to
presidential primaries; (2) moving the deadline for filing as a write-in
candidate from August to September; (3) spelling out in the law that minor
parties may substitute a new nominee, if the original nominee withdraws; (4)
providing that when petitions are checked, minor variations in name and address
should not disqualify a signature.

4. Massachusetts:(See also this update.) H 2090,
a restrictive bill, passed the Joint Election Laws Committee on April 9. It
provides that an unqualified party which fails to qualify after two elections,
will lose all its registrants; they will be automatically converted to
independents, instead of members of the unqualified party. This obviously makes
it more difficult for a party to qualify by registration, if it is making slow
progress.

5. New Hampshire:(See also these
updates on HB 417 and
on HB 446.)
The Senate Public Affairs still has not voted on either HB 417 (which
liberalizes the definition of "political party"), nor HB 446 (which bans
fusion).

6. North Carolina:(See also this update on SB 573.
B.A.N. originally reported on HB 79, referring to it mistakenly as
"SB 2", in the February
2, 1997 issue.) The two bills which improve ballot access for minor
parties, SB 573 and HB 79, still have not been released to the floor of either
house.

7. South Carolina: The two bills which legalize presidential
write-ins, SB 399 and HB 3009, are still in committee.

On April 15, the U.S. Supreme Court ruled that Georgia may not require all
candidates for state office to be tested for illegal drug usage. Chandler
v Miller, no. 96-126. The vote was 8-1; only Chief Justice William
Rehnquist dissented.

The decision, by Justice Ruth Bader Ginsburg, is entirely based on the 4th
amendment to the U.S. Constitution, which bars unreasonable searches. Virtually
nothing was said about the rights of candidates or voters. Rehnquist's dissent
said "Nothing in the Fourth Amendment prevents a State from enacting a statute
whose principal vice is that it may seem misguided or even silly to the members
of this Court."

On April 23, U.S. District Court Judge Claudia Wilken, a Clinton appointee,
ruled that California's legislative term limits violate the U.S. Constitution.
Bates v Jones, no. C95-2638 (nor. dist.). This was the first time
any court had ever held that the U.S. Constitution forbids states to have state
legislative term limits.

The decision seems to say that the California law is void because the term
limits are for the lifetime of the legislators. Footnote 15 of the opinion says,
"The Court expresses no opinion on the constitutionality of any form of term
limits other than the lifetime legislative term limits imposed by Proposition
140".

Twenty-one states have legislative term limits, but in only seven states are
the limits for life; other states let ex-legislators run again after sitting out
a term or two.

The decision is being appealed. In the meantime, Judge Wilken stayed her own
opinion, so the law remains in force for the time being.

The U.S. Supreme Court, twenty years ago, summarily affirmed a lower court
ruling that lifetime term limits for Governor are constitutional. The
Bates decision does not discuss precedents on term limits for
Governors.

1. Alabama: On August 16, 1996, U.S. District Court Judge Ira De Ment
ruled that the Constitution protects county voter registrars from being replaced
because of their party affiliation. Jackson v James, 952 F.Supp.
737. The plaintiffs were Democrats who had not been replaced when their terms
expired; their replacements were all Republicans.

2. Illinois: On January 30, the State Supreme Court ruled that the
address in a petition circulator's affidavit, need not be the same address at
which the circulator is registered to vote. Lucas v Lakin, 676
N.E.2d 637.

3. Indiana: On January 22, U.S. District Judge Sarah Barker voided an
Indiana law which made it illegal for a candidate to post a sign without saying
on the sign, who paid for it. Stewart v Taylor, 953 F.Supp. 1047.

4. Maine:(See also this update.) the
Green Party has asked the State Supreme Court to rule that it is still a
qualified party. Maine Green Party v Secretary of State, no.
f-97-120.

5. New Jersey:(See also this update.) On April
24, the ACLU filed a lawsuit in federal court, challenging the April petition
deadline for independent candidate petitions (for office other than president).
Council of Alternative Political Parties v Hooks, cv97-1966. The
case went to Judge Mary Parell, a Bush appointee. Plaintiffs are the
Conservative Party, Green Party, Libertarian Party, Natural Law Party, and US
Taxpayers Party.

6. Texas: on April 29, the 5th circuit heard arguments in
Lightbourn v County of El Paso, 96-50564, over whether federal law
prohibiting discrimination against the disabled forces states to provide devices
to enable blind voters to vote without the assistance of another person. Judges
are E. Grady Jolly, John Duhe, and Emilio Garza. Observers said it was difficult
to guess which way the panel is leaning.

8. Wyoming: on April 23, the 10th circuit ruled that Spiegel v
State, 96-8068, is moot. The case had been filed by the Labor Party
against the May 1 petition deadline, but this year the legislature changed it to
June 1.

"FULL PARTY REQ." is a procedure by which a new party can qualify before it
chooses candidates; parentheses means the party must also do candidate
petitions. # -- means the candidate procedure lets candidate use a party label.
"Deadline" refers to the "full party procedure"; if the state doesn't have one,
then it refers to the candidate petition method. * -- entry changed since
last issue.

On April 1, Missouri held a special election to fill a vacancy in the House,
162nd district. Denny Merideth, an independent candidate, won the election,
defeating his only opponent, the Democratic nominee, by 3,233 to 2,932. The
162nd district is in rural southeast Missouri. Last year, the only nominee for
this seat was a Democrat.

This is the first time in this century that Missouri has elected an
independent to its legislature, although an independent was elected to the U.S.
House of Representatives last year from the state (however, she promptly
associated herself with the Republican Party).

Voters in New Mexico's Third Congressional District will vote on May 13 for a
replacement to former Congressman Bill Richardson, a Democrat who is now U.S.
ambassador to the United Nations. Five candidates are on the ballot: Democrat
Eric Serna, Republican Bill Redmond, Green Carol Miller, Reform Dan Pearlman,
and Libertarian Ed Nagel.

Carol Miller, the Green Party nominee, was a member of Hillary Clinton's 1993
health care task force, and she has been endorsed by the local NAACP and several
Native American leaders. Some polls have shown her support above 20%. The Third
District includes Santa Fe, which was Ralph Nader's fifth best county in the
United States last year, when he was the Green Party's presidential nominee (he
polled 7.1% in Santa Fe County).

Harry Browne and his closest political advisors have formed the "Harry Browne
for President 2000 Exploratory Committee", which will build Browne's name
recognition, pursue contacts in the media, and build a campaign treasury. If
Browne decides later not to run again for the Libertarian presidential
nomination, money on hand will be donated to whomever does win that nomination.

The deadline has passed for minor party and independent candidates to qualify
for New Jersey's state election this year. On the ballot for Governor are
nominees of the Green, Libertarian, Conservative, Socialist, Natural Law, and
Socialist Workers Parties. Also, there are two independent candidates.

All 80 Assembly seats are up for election. The Conservative Party has 45
candidates; Libertarian 5; Natural Law 3; Reform 2; Socialist Workers 2;
Socialist 1. If the lawsuit against the April deadline wins (see above), there will be
additional candidates from these parties.

For the 40 State Senate seats, there are 18 Conservative Party nominees, 2
Libertarian, 2 Natural Law, 1 Green.

2. New Realities, New Thinking, Report of the Task Force on
Campaign Finance Reform, is distributed by Citizens' Research Foundation,
University of Southern California, 3716 S. Hope St. #238, Los Angeles CA 90007.
The Report includes the ideas and recommendations of nine political scientists
who are experts in campaign finance. Not all of the recommendations are
unanimous. Unfortunately, the Report sells for $25 plus $2.50 postage and
handling, even though it is only 34 pages long.